Posner: Class Action Rules, Constitution Overrated

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By Perry Cooper

Oct. 27 — Influential jurist Richard Posner told a stunned room of class action attorneys recently he doesn't think much of the federal rule governing their practice.

“I don’t get a lot out of Rule 23,” Posner said of the class action rule, Fed. R. Civ. Pro. 23.

Instead he makes a “holistic judgment” of whether a class action is appropriate. “Actually reading Rule 23, I just get lost in all the detail and the subsections,” he said.

Posner has served on the U.S. Court of Appeals for the Seventh Circuit since 1981 and has authored some of that court's most influential class action and other rulings.

His comments were beamed into the ABA’s National Institute on Class Actions in Las Vegas via Skype Oct. 20.

Posner also took broad shots at the federal rules of procedure and evidence generally, lawyers, law schools, law professors, the Bluebook and even the U.S. Constitution.

Plaintiffs’ attorney Benjamin Gould of Keller Rohrback LLP took to Twitter, as did many other attorneys, saying he is enjoying “Posner’s late decadent period.”

Posner has made waves with his comments several times recently. Posner called the U.S. Supreme Court “awful” in an Oct. 4 interview with C-SPAN’s BookTV.

“I think it’s reached a real nadir,” Posner said. “Probably only a couple of the justices, Breyer and Ginsburg, are qualified.”

‘Invitation to Shenanigans.’

Posner, at the class action event, called class actions “an invitation to shenanigans” because “the client—the class—is basically helpless.”

Class counsel makes the decisions but they “seem to be primarily interested in attorneys’ fees,” he said. “And the defendants are just interested in getting off as lightly as they can.”

Posner has authored several recent opinions striking class settlements for collusion and other fairness-related concerns (15 CLASS 1333, 11/28/14).

His shenanigans comment raised a round of chuckles in the room, and more than a few groans from the plaintiffs’ bar on Twitter.

“Is the point we should not have them at all?” Daniel C. Girard, founder of plaintiffs’ firm Girard Gibbs LLP in San Francisco, tweeted.

Another plaintiffs’ attorney, Adam M. Tamburelli of Sullivan, Krieger, Truong, Spagnola & Klausner LLP in Los Angeles, called the comment on Twitter “unfortunate.”

Posner acknowledged that Rule 23 is helpful because it gives a procedure for class certification and other steps, but he considers the rule much more generally.

“For certification the question is, ‘Is this an efficient way to deal with the dispute?' ‘Is there a real class, a lot of people with a common interest?' ‘Is their representation competent?' ‘Are there clearly focused issues?'” he said.

Defense attorney Paul Karlsgodt, who was at the event, told Bloomberg BNA the jurist's digs at the class action rule “seemed somewhat tongue-in-cheek,” to him, but “complemented what he said more generally about his approach to decision-making.”

Posner admitted his approach is unorthodox. “The way I approach a case is by asking myself, ‘What would be a common sense result, forgetting about the law?'” he said. “You have a problem: What’s the best solution based on basic moral values, economic insights, whatever makes sense.”

He said judges just have to make sure that no authoritative, superior powers block their conclusion—a U.S. Supreme Court decision, a clear statute or the Constitution.

“I think a lot of judges take that approach to decision-making, though many may not do so intentionally or just may not be as bold as Judge Posner in admitting it,” Karlsgodt said. He is the leader of BakerHostetler’s national class action defense team in Denver, and writes about class actions at ClassActionBlawg.com .

The lesson for practitioners, Karlsgodt said, “is to make sure to evaluate whether our arguments have practical and emotional appeal, rather than just focusing on what the law arguably requires or prohibits.”

‘I Largely Ignore the Rules.’

It’s not just Rule 23 Posner doesn’t have patience for.

“I largely ignore the rules entirely,” he said. He gave the example of the hearsay rule in the Federal Rules of Evidence.

“All that the hearsay rule amounts to is you don’t let in hearsay, second-hand evidence, unless it’s reliable, which is perfectly sensible,” he said. “So you could have one sentence, and that would be it.”

Attorneys on Twitter disagreed. “Fact Check: That’s not how the residual exception to hearsay works. At all,” Sean Marotta, senior associate in Hogan Lovells’s appellate group in Washington, said.

If it were up to Posner, the rules of evidence, civil procedure and criminal procedure would be greatly pared down. But, “There doesn’t seem to be any push for simplification in law,” Posner said.

In fact, Posner would change a lot about the modern practice of law in the U.S., according to what he told attorneys in Las Vegas.

“While I’m on this rage, lawyers, law professors, judges—they are too backward-looking,” he said. “They’re always looking back, preoccupied with the Constitution.”

He said much of the Constitution “deals with the antique.” He would prefer that the legal profession be more forward-looking—“Dealing with the problems of the 21st century and not thinking they were solved in the 18th century.”

Attendee Gregory Cook, of defense firm Balch & Bingham LLP in Birmingham, Ala., said on Twitter at the time: “Absolutely unbelievable that a federal appeals court judge would say that ‘much’ of the Constitution is ‘outdated’ and ‘stale.’”

Advice for Lawyers

Posner offered additional advice to lawyers, but not without a few choice words for law schools and professors.

When asked if a clear brief could sway his opinion, he quipped, “I certainly appreciate a well-written legal brief, but that’s pretty rare.” That drew a big laugh from the audience.

His big request is for briefs to be shorter. “I’m tempted at times just to look at the summary of argument and skip the rest of it,” he said. “I wish the district court opinions were shorter also, but we work with what we have.”

He gave the example of one brief in which he counted 79 cases listed in the table of contents. “That’s preposterous!” he said. “Who is going to read 79 opinions to decide one case? The answer is nobody!”

He also chastised brief writers for exaggerating, emphasizing very minor points and misrepresenting the authorities that they are citing.

“I blame the law schools on this,” he said. The lack of practical experience of many law professors is a serious deficiency by his estimation.

“It makes legal teaching very abstract and focused on things that are really aren’t important like fine details of legal doctrine or the Bluebook,” he said.

In fact, he called the Bluebook, the legal citation bible, “580 pages of rubbish!”

Law professors on Twitter balked. Appellate advocacy professor Ellie Margolis of Temple Law in Philadelphia said Posner showed “he has no idea what we are teaching these days.”

Joseph Mastrosimone, who teaches legal writing at Washburn Law in Topeka, Kan., tweeted, “We teach the exact opposite. Judge Posner maybe should visit my class. #PosnerDoesntKnowMe.”

After the event, conference organizer and attorney Daniel R. Karon said Posner’s “candidness was invigorating.”

Karon, of Cleveland plaintiffs’ firm Karon LLC, told Bloomberg BNA he knew Posner could be expected to participate in “such an honest discussion.”

To contact the reporter on this story: Perry Cooper in Washington at pcooper@bna.com

To contact the editor responsible for this story: Steven Patrick at spatrick@bna.com

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